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conviction determined in a unitary trial. (People v. Calderon, supra, 9 Cal.4that p. 72.)  The most common situation in which the defendant will not suffer undue prejudice is when the fact of the prior conviction will be presented to the jury in a trial on guilt alone, when it is “relevant to prove matters such as the defendant’s identity, intent, or plan . . . .”  (Id. at p. 78.)

Martin, a case involving shots fired at individuals believed to be rival gang members, concluded that analogy to prior conviction allegations was not appropriate when determining whether to bifurcate a criminal street gang allegation because evidence of a prior conviction is separate and unrelated to the underlying crime.  The criminal street gang enhancement in Martin was proved by “the same witnesses (gang members) and much of the same evidence used to prove the” circumstances, motive and intent of the underlying homicide.  (People v. Martin, supra, 23 Cal.App.4th at p. 81.)  Because evidence of gang motive for the homicide was introduced at the trial of the underlying felony, Martin concluded, on the facts presented there, that “[t]here was no need for, and in fact, no reasonable way to bifurcate the enhancement allegation.”  Thus, the defendant would not be unduly prejudiced by a joint trial.  (Id. at p. 82.) 3

Martin also suggested criminal street gang enhancements routinely may be tried jointly with the underlying offense because proof of the gang enhancement requires proof the defendant had the specific intent to promote, further or assist a criminal street gang at the time of the underlying crime.  Martin noted a criminal street gang enhancement, in this respect, is similar to the enhancements defined by section 12022.4 (furnishing a firearm to another during commission of a felony for the purpose of aiding, abetting or

3 People v. Funes (1994) 23 Cal.App.4th 1506, 1518, declined to address whether, as a general proposition, gang enhancements under section 186.22 might be bifurcated.  Funes instead decided the trial court in that case properly admitted evidence of gang affiliation and activity to prove intent and motive.  Funes concluded that, once the trial court decided gang evidence was admissible for these purposes, “it did not abuse its discretion under Evidence Code section 352 when it permitted the prosecution to present the entire picture of the rivalry between” the two gangs.  (People v. Funes, supra at p. 1519.)  

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